The Supreme Court of the State of Illinois (“Illinois Supreme Court”) stated in its opinion filed on November 30, 2017 that the plaintiff’s Medical Malpractice wrongful death cause of action accrued upon the decedent’s death, which occurred several months after the four-year repose period had expired. If the plaintiff had filed an original complaint alleging a wrongful death cause of action at that time, it would have been barred by the statute of repose. However, the Illinois Supreme Court held that a pending complaint can be amended to include a wrongful death claim that accrued after the statute of repose expired, pursuant to the relation back statute.

The decedent had filed a two-count Illinois medical malpractice complaint on August 4, 2011. The decedent alleged in her Illinois medical malpractice lawsuit that from November 5, 2007 through July 2009, she received medical care and treatment from the defendants for flashes, spots, and floaters in her eyes. On August 7, 2009, the decedent underwent a brain biopsy that showed she had central nervous system lymphoma.

The decedent alleged in her Illinois medical malpractice complaint that the defendant physician was negligent by failing to order appropriate diagnostic testing on November 5th, 2007 for a patient with bilateral metamorphopsia and visual acuity that could not be corrected to normal levels in either eye; by failing to diagnose macular pathology; and, by failing to perform appropriate medical evaluation of a 47-year-old patient with macular pathology and no known systemic illness.

The decedent died on November 24, 2013. The trial court subsequently granted the decedent’s daughter leave to file an amended complaint, substituting herself as party plaintiff and as the executor of the decedent’s estate. The amended complaint included counts for wrongful death and a survival action.

The Illinois medical malpractice defendants filed motions to dismiss the wrongful death claim based on section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2010)), arguing that the plaintiff’s wrongful death claim was barred by the four-year medical malpractice statute of repose because the decedent had died more than four years after the last alleged act of negligent medical treatment. The defendants further argued that the relation back statute did not apply where a death occurs more than four years after the alleged negligence. Alternatively, the defendants argued that even if the relation back statute does apply, the medical malpractice statute of repose should control and preclude the plaintiff’s wrongful death claim.

The plaintiff responded that the wrongful death claim was timely and was not barred by the statute of repose because it related back to the original complaint, pursuant to section 2-616(b) of the Code (735 ILCS 5/2-616(b) (West 2010)).

The Illinois Supreme Court Decision

The Illinois Supreme Court stated that in a wrongful death action, the cause of action is the wrongful act, neglect or default causing death, and not merely the death itself.

Illinois Medical Malpractice Statute Of Repose

The Illinois medical malpractice statute of repose is set forth in section 13-212(a) of the Code, which provides that actions based on medical malpractice are subject to a four-year statute of repose. Section 13-212(a) states, in relevant part: “Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician *** whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

735 ILCS 5/13-212(a) (West 2010).

The Illinois Supreme Court noted that the statute’s four-year repose period is triggered by the occurrence of the act or omission that caused the injury, whereas the two-year limitations period is triggered by the plaintiff’s discovery of the injury. The only exception expressly noted by the statutory language is the fraudulent concealment exception in section 13-215 of the Code. Thus, the statute of repose may preclude recovery for an injury arising out of patient care even before the plaintiff knows or discovers the injury.

Illinois Relation Back Statute

The Illinois relation back statute permits an amended pleading to relate back to the date of the original pleading if the original pleading was timely and the amendment grew out of the same transaction or occurrence set up in the original pleading. The Illinois relation back stature provides: “The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action, cross claim or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.” (emphasis added)

735 ILCS 5/2-616(b) (West 2010).

The Illinois Supreme Court stated that the relation back statute permits an amended pleading filed after the expiration of the limitations period to relate back to the filing of the original complaint if two requirements are met: (1) the original pleading was timely filed and (2) the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. The Illinois Supreme Court further stated that a liberal construction of the requirements of section 2-616(b) is necessary to allow the resolution of litigation on the merits and to avoid elevating questions of form over substance (the purpose of the statute is to preserve causes of action against loss by reason of technical default unrelated to the merits).

The Illinois Supreme Court concluded: “If the original complaint was timely, an amendment will not be barred by any time limitation, so long as the amendment grew out of the same transaction or occurrence as the original complaint. The parties do not dispute that plaintiff’s original complaint was timely filed. It is also clear that the amendment grew out of the same transaction or occurrence as alleged in the original complaint, and defendants make no argument to the contrary. The wrongful death claim was based on the same alleged acts of medical malpractice as in the original complaint. In fact, the allegations of malpractice in the wrongful death claim are taken verbatim from the allegations of malpractice in the original complaint. Since plaintiff has satisfied the two requirements in the relation back statute, it applies to her wrongful death claim. And, pursuant to the statute, the claim is not time-barred even though it accrued after the statute of repose period expired. Therefore, plaintiff’s wrongful death claim can be added by amendment to plaintiff’s pending complaint pursuant to the relation back statute … plaintiff’s wrongful death claim is not barred by the statute of repose.”

“We find that the statutes do not conflict with one another. When statutory language is clear and unambiguous, we must apply the statute as written, without resort to extrinsic aids of statutory construction … The statute of repose bars a cause of action if it is initially brought more than four years after the alleged medical negligence. The relation back statute governs amendments to complaints and functions without being subject to time limitations. Thus, when applying the relation back statute, the statute of repose will not bar an amendment as long as there is a pending timely filed original complaint and the same transaction or occurrence test is satisfied. The relation back statute is the more specific statutory provision to these circumstances.”

“We conclude that the relation back statute applies to plaintiff’s wrongful death claim and the claim is not barred by the statute of repose.”

Source Lawler v. University of Chicago Medical Center, 2017 IL 120745.

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